You Know the Drill

For all my skepticism about the effort by young climate activists in Oregon to have the federal courts effectively shut down the fossil-fuel industry, I have to admit this is a clever idea:

Lawyers for teenagers claiming the US government failed to protect the environment from global warming plan to question under oath President-elect Donald Trump’s pick for secretary of state on his knowledge of climate change.

Exxon Mobil Corp. chief executive Rex Tillerson’s testimony, set for the day before the Jan. 20 inauguration, is being sought by lawyers representing 21 children and teenagers seeking to prove that oil and gas industry groups “have known about the dangers of climate change since the 1960s and have successfully worked to prevent the government” from taking action.

The groups, whose members include Exxon, joined the lawsuit [Juliana, et. al. v. United States] on the side of the government to oppose the teens.

The youths from across the country claim that by perpetuating the use of fossil fuels, the government has trampled their constitutional rights to life, liberty, and property. They won a shot at pursuing their claims in November when an Oregon federal judge rejected the government’s request to throw out their lawsuit.

Tillerson, who was a director and recent chairman-elect of the American Petroleum Institute, would be asked about his company and industry contributing to global environmental damage, lawyers for the teenagers said Thursday in a statement.

It will be quite interesting to see the future Secretary of State (and he will be confirmed, no matter how contentious things get during this week’s Senate hearings) pressed on ExxonMobil’s reckless disregard of the climate crisis over the past four decades, even though his testimony will likely not change the outcome of this doomed lawsuit, an attempted end run around the inconvenient political truth that climate hawks are, unfortunately, lousy voters who failed to show up in the 2010 and 2014 midterms to prevent climate deniers from seizing control of the House and Senate, respectively. The plaintiffs in this lawsuit should direct their hostility at those who recycled, bought reusable bags, purchased a Prius and watched all the climate documentaries, but who couldn’t be bothered to get up from their rear ends and vote for candidates who vowed to lead on climate when it counted.

I have previously noted that the United States Ninth Circuit Court of Appeals’ 2012 ruling in Kivalina v. ExxonMobil, which threw out a previous effort to rein in the fossil fuel industry, provides a template for how the Juliana case will ultimately wind up. Another template can be found in the Comer v. Murphy Oil case, which the United States Court of Appeals for the Fifth Circuit threw out in 2013. In a 2012 United States District Court ruling against the plaintiffs in the case (a ruling which was upheld on appeal by the Fifth Circuit), Judge Louis Guirola, Jr., a George W. Bush appointee, declared:

It is unclear how this Court or any jury, regardless of its level of sophistication, could determine whether the defendants’ emissions unreasonably endanger the environment or the public without making policy determinations that weigh the harm caused by the defendants’ actions against the benefits of the products they produce. Our country, this Court, and even the plaintiffs themselves rely on the products the defendants produce…[T]he Court finds that the claims presented by the plaintiffs constitute non-justiciable political questions, because there are no judicially discoverable and manageable standards for resolving the issues presented, and because the case would require the Court to make initial policy
determinations that have been entrusted to the EPA by Congress.

Look for the federal courts to come to the same conclusion in the Juliana case, even though the EPA will be in the clutches of climate deniers for at least the next four years. Federal judges are not climate scientists, and courts–being inherently conservative [in the non-political sense of the word] institutions–will never take the aggressive steps required to reduce carbon pollution. Those steps can only be taken by climate hawks voted into office by engaged and concerned citizens. The ballot box, not the cautious courtroom, is the only thing that can save future generations.

D. R. Tucker is a Massachusetts-based journalist who has served as the weekend contributor for the Washington Monthly since May 2014. He has also written for the Huffington Post, the Washington Spectator, the Metrowest Daily News, investigative journalist Brad Friedman's Brad Blog and environmental journalist Peter Sinclair's Climate Crocks.